Citizens' Loan & Trust Co. v. Herron

• Decision Date: 30 January 1914
• Docket Number: No. 8821.,8821.
• Citation: 103 N.E. 1092
• Court: Indiana Appellate Court
• Parties: CITIZENS' LOAN & TRUST CO. v. HERRON et al.

103 N.E. 1092

CITIZENS' LOAN & TRUST CO.

v.HERRON et al.

No. 8821.

Appellate Court of Indiana, Division No. 1.

Jan. 30, 1914.

Appeal from Circuit Court, Boone County; Willett H. Parr, Judge.

Action by Ethel May Daily Herron and others against the Citizens' Loan & Trust Company, administrator of the estate of John C. Daily, deceased. Judgment for plaintiffs, and defendant appeals. Affirmed.

Smith, Hornbrook & Smith, of Indianapolis, W. S. Shirley, of Martinsville, and S. M. Ralston, Bert Winters, and S. R. Artman, all of Lebanon, for appellant. C. T. Hanna and T. A. Daily, both of Indianapolis, and R. W. Adney and J. W. Hornaday, both of Lebanon, for appellees.

HOTTEL, P. J.

This is an appeal from a judgment in appellees' favor disapproving a current report made by appellant as administrator with the will annexed of the estate of John C. Daily, deceased. The issues of fact were presented by such report and appellees' exceptions thereto, in which they objected to credit being taken and allowed on account of certain vouchers filed therewith.There was a trial by the court, a special finding of facts, conclusions of law and judgment in appellees' favor. Appellant excepted separately to each of the conclusions of law and filed a motion for new trial, which was overruled. The errors assigned and relied on for reversal call in question the correctness of the several conclusions of law and the ruling on the motion for new trial.

The finding of facts and conclusions of law are very lengthy, and appellant concedes that by the errors assigned and relied on a single question is presented by the appeal, which question was concretely stated by appellants' counsel in their oral argument as follows: “Did Charles C. Daily, son of the testator, under his father's will and codicil take a vested interest in a part of his father's estate which was subject to be charged with the payment of this son's debts?” The answer to this question depends solely on the construction to be placed on the will of said John C. Daily, deceased, and hence it alone is all of the finding of facts that we need set out in this opinion.

That part of the testator's will affecting said question contains the following provisions and items: By the first item of his will said testator gave to his widow, Martha H. Daily, certain personal property absolutely, and by the second item he gave to her a life estate in all of his property both real and personal.

The fourth and fifth items of such will are respectively as follows:

“Fourth: In the event of the death of my said wife before my youngest child, David W. Daily, arrives or if living would arrive at the age of twenty-one years, I hereby constitute, appoint and empower my nephew Americus C. Daily, to be and to act as the executor of this my will and testament, without giving or being required to give bond or surety and that in the event of the death of my wife as aforesaid, he shall so act as said executor and I hereby authorize and empower him to so act as hereinafter more specifically set forth, that is to say: In the event of the death of my wife before said David W. Daily shall become, or if living, would attain the age of twenty-one years, said Americus C. Daily shall take charge of and fully control and manage as such executor all my estate, both real and personal, in trust for the benefit of my children and heirs, subject to the conditions herein until the period of time when said David W. Daily shall attain or if living would attain to the age of twenty-one years and said executor shall have full and plenary power and authority to manage all of my estate until said period of the time above named shall arrive, except that it is my will and I hereby direct that immediately after the death of my wife, my two daughters, Mary E. Busby and Lydia A. Darnell, and their families if they can and shall make it agreeable among themselves, shall occupy, free of rent and other charges therefor my brick residence in the city of Lebanon aforesaid, with privileges and appurtenances belonging to the same until my said youngest son, David W. Daily, shall attain or if living would attain to the age of twenty-one years. Provided, always, that in case my said daughters or either of them so occupy said premises they or either of them shall therein furnish my said youngest son, David W. Daily, a home and shall also board him during his minority and they shall exercise good care over the premises aforesaid. The names of each and all my children are, Mary E. Daily, now intermarried with George W. Busby; Sarah A. Daily, now intermarried with Jesse G. Lame; Lydia A. Darnell, now intermarried with James Darnell, Charles Daily, George T. Daily and David W. Daily. I direct that my said executor during his executorship shall after the payment annually of all taxes, insurance, needful improvements and necessary expenses of my estate, annually or oftener at his discretion, divide and distribute equally the surplus of said income (after the payment aforesaid) among all of my said children. And I further direct that at the time my said youngest son, David W. Daily, shall attain the age of twenty-one years or if living would so attain to that age, then within a reasonable time thereafter and so soon as he can without material loss or injury to my estate, he, my said executor, shall sell all of my said real estate for the highest and best price he can obtain and convert the proceeds thereof and also my personal property, bonds, securities, etc., into money and divide and distribute the same equally share and share alike among and to each and all of my said children. And it is my further will that if any one or more of my said children shall die before said final distribution, then and in that event if the children or child so dying shall leave surviving him or her a child or children issue of his or her body, such child or children to take and inherit the share or portion that would go to the parent if living under the provisions of this will.

“Fifth: It is my further will that in consideration of my esteem for George W. Busby as a man and his great kindness and attention to his wife, my said daughter, Mary E., whose delicate health requires much attention, that in the event of the death of said Mary E. Busby before the said final distribution without issue of her body, and in the event that said George W. Busby be living at the date of said distribution, I hereby devise and bequeath and hereby direct my executor to pay to said George W. Busby the sum of one thousand dollars at the date of the distribution aforesaid.”

In a codicil to his will said testator provided as follows: “Whereas the within will does not provide for an executor should my wife live until or after my son David W., shall attain or if living would attain the age of twenty-one years or after that date, I do hereby make, constitute and appoint as such executor my nephew, Americus C. Daily, without his giving or being required to give bond or surety and to close up the business of said estate in accordance with the provisions heretofore made.”

The court stated, as a part of its first conclusion of law, that “the law is with the exceptors [appellees]; that by the terms of the said will of John C. Daily, deceased, his son, Charles Daily, took a conditional fee or interest in the property to be distributed as provided by the terms of said will, which fee or interest was subject to be divested and was divested by the death of said Charles Daily before the time set for said distribution to wit, the death of the said Martha H. Daily and the attainment of said David W. Daily to his majority of 21 years of age. That the share or interest of said distribution proceeds that should have gone to said Charles Daily had he survived said two events *** went to and vested in said exceptors, Ethel May Daily Herron and Fred Roscoe Daily, as the children of and issue of the body of said Charles Daily.” Appellant contends that such conclusion of law is erroneous, and that the question presented by the appeal as concretely stated above should be answered in the affirmative, and, in support of this contention, relies on certain well-recognized rules applicable to the construction of wills.

[1][2] Its contention that the law favors the vesting of remainders at the earliest possible period absolutely and not contingently, that words of postponement in a will generally relate to the beginning of the enjoyment, and not to the vesting of the estate, and that, where the language of a will may fairly carry the whole estate, an intention of partial intestacy is not presumable are rules of construction well understood and repeatedly announced both by this court and the Supreme Court. Myers v. Carney, 171 Ind. 379, 86 N. E. 400;Alsman v. Walters, 101 N. E. 117. The importance of these rules and when they should be invoked in construing a will was recently considered and fully discussed by this court in the case last cited.

[3] It is equally well settled that, when an interest or estate has been given in clear terms in one clause of a will, such interest or estate cannot be taken away or cut down by a subsequent clause which is not equally clear and decisive of the testator's intention. Stimson v. Rountree, 168 Ind. 169, 78 N. E. 331, 80 N. E. 149; Snodgrass v. Bradenburg, 164 Ind. 59, 71 N. E. 137, 72 N. E. 1030; Myers v. Carney, supra, 171 Ind. 379, 86 N. E. 400, and...